Haynes v. Gilsonite Const. Co.

PELPHREY, C. J. This is an appeal from an order of tbe district court for tbe 101st judicial district of Texas, sitting at Dallas, overruling appellant’s plea of privilege. Appellee alleged in its petition that in November, .1924, it bad entered into a contract with appellant whereby it was to receive a certain part of tbe profits made by appellant on a contract to construct tbe Medical Arts building at San Antonio, Tex.; that appellee was to render appellant assistance in financing the construction of said building and to render certain services in tbe construction thereof. Appellee also alleged that appellant had been guilty of fraud in securing from appellee certain stock in tbe said Medical Arts building, and bad converted tbe same to bis own use and benefit. Appellee prayed for a judgment for title and possession of tbe stock converted or its reasonable market value and for tbe balance alleged to be due in cash under the contract. Appellant filed bis plea'of privilege, which was controverted by appellee. Appellant filed a special exception to tbe controverting affidavit on the ground that it showed on its face that tbe contract sued on bad never been signed by appellant, a special exception as to tbe sufficiency of tbe allegations of fraud, a general demurrer and a general denial. Upon a bearing on tbe plea of privilege, tbe court overruled tbe plea of privilege, and from that order Haynes has appealed to this court. Opinion. Appellant predicates bis appeal on tbe following two* propositions: “First. Appellee’s action is one for breach of contract involving the refusal to deliver certain stock and to pay certain money, and the issue with regard to any fraud which may have been committed in Dallas county, Tex., is entirely collateral to the suit, and the case therefore does not fall under subdivision 7 of article 1995, relative to fraud. “Second. The contract sued on having never been executed by appellant, venue does not arise thereunder in Dallas county, Tex., under subdivision 5 of article 1995.” In accordance with our views on the questions involved, we deem necessary only to discuss tbe last proposition. Tbe first question arising is, Do tbe facts of tbe case show a contract in writing? We find from an examination of tbe statement of facts that the only evidence offered was by appellee, and that tbe testimony so offered is uncontrove.rted. • Louis J. Hoenni, president of tbe Gilsonite Construction Company, testified that tbe agreement Jjetween appellee and appellant was in writing; that it was drawn by an attorney, ¡Mr. Rhodes Baker, of Dallas; that there were three copies made; that they were signed by appellee, and one copy banded to appellant; that he did not know whether appellant signed the copy banded to him, but that be did not sign the copy kept by ap-pellee ; that appellee carried out its part of thé agreement; and that no question was ever raised by appellant regarding tbe contract. Tbe record further shows that appellant turned over to appellee certain stock in tbe Medical Arts building issued in bis name, and paid appellee a certain amount in cash. A letter from appellant to appellee requesting a return of tbe stock turned over to it by him to be replaced by preferred stock is also found in tbe record. It is well established in this state that a contract reduced to writing and signed by one party and accepted by tbe other is a written contract. Martin v. Roberts, 57 Tex. 564; Campbell et al. v. McFaddin et al., 71 Tex. 28, 9 S. W. 138; Clegg v. Brannan, 111 Tex. 367, 234 S. W. 1076. In our opinion the evidence in tbe case at bar is amply sufficient to show an acceptance on tbe part of appellant, and the contract, having been reduced to writing and signed by appellee, under tbe rule laid down by our Supreme Court in tbe cases just cited, became impressed with tbe character of a written instrument,, and will be treated as such by tbe law and the courts. Our statute (article 1995, § 5) reads as follows: “Contract 'in Writing. — If a person has contracted in writing to perform an obligation in a particular county, suit may be brought either in such county or where the defendant has his domicile.” Tbe contract in tbe case at bar provided fo,r tbe payments thereunder to be made in Dallas county. Does this case fall within thé exception above quoted? We find from a search of tbe decisions that tbe Austin Court of Civil Appeals and tbe Dallas court have held under a similar state of facts that tbe exception was applicable. Gottlieb v. Dismukes (Tex. Civ. App.) 230 S. W. 792; Grainger v. Gottlieb (Tex. Civ. App.) 234 S. W. 604; Dickinson v. Carter (Tex. Civ. App.) 246 S. W. 739. While there is a serious question in our minds as to whether tbe Legislature intended to permit a defendant to be sued in a county other than that of his domicile, unless it be shown that be ba'd signed an agreement in writing to perform an obligation in such county, yet, in view of tbe fact that two of *642 erar Courts of Civil Appeals have expressly held that signing was not essential, and in view of the further fact that the Legislature has been in session several times since the decision in. the case of Gottlieb v. Dismukes, supra, and have made no change in the wording of the statute, we feel that we should follow the doctrine by them announced. The judgment of the trial court in overruling the pleá of privilege is accordingly affirmed.